110 September 23, 2026 No. 879
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
HAYES OYSTER COMPANY,
Petitioner-Appellant,
v.
DEPARTMENT OF AGRICULTURE
and Lisa Charpilloz Hanson,
in her official capacity as Director,
Respondents-Respondents.
Tillamook County Circuit Court
19CV41007; A187044
Mari Garric Trevino, Judge.
Argued and submitted January 21, 2026.
Thomas R. Benke argued the cause and filed the briefs
for appellant.
Inge D. Wells, Assistant Attorney General, argued the
cause for respondents. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Interim Deputy
Attorney General.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 353 Or App 110 (2026) 111
ORTEGA, P. J.
This case is before us after our remand in Hayes
Oyster Co. v. Dept. of Agriculture, 333 Or App 133, 552 P3d
97 (2024) (Hayes II). In Hayes II, we concluded that the circuit court had erred in dismissing Hayes’s claim to compel
agency action under ORS 183.490, and we remanded to
the circuit court for further proceedings on that claim. On
remand, the parties filed cross-motions for summary judgment, and the circuit court granted summary judgment
to the Oregon Department of Agriculture and its director
(collectively, ODA). Hayes now appeals from the resulting
judgment. We conclude that the circuit court did not err and affirm.
“On review of cross-motions for summary judgment,
we view the record for each motion in the light most favorable to the party opposing it to determine whether there is
a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law.” O’Kain v. Landress, 299 Or App 417, 419, 450 P3d 508 (2019).
We recite only those facts necessary to this appeal.1
In 2001, the Oregon Department of Environmental Quality
(ODEQ) issued a total maximum daily load (TMDL) for
the Tillamook Bay Watershed, which “established that the
amount of fecal coliform that can enter a waterbody for
‘[f]arm buildings and pastures that have had manure
applied to them’ is zero (the zero Load Allocation).” Hayes II, 333 Or App at 136 (brackets in Hayes II). ODA is the designated management agency for the Tillamook Bay Watershed
TMDL. Both parties agree that ODA is required to create
an Agricultural Water Quality Management Area Plan
(AWQMAP) to implement that TMDL. The parties part ways
on whether ODA can fulfill that obligation with its North
Coast Basin AWQMAP, the North Coast Basin AWQMAP
rules that implement the non-voluntary components of the
plan, and the Confined Animal Feeding Operation (CAFO)
permit program. Hayes contends that ODA is required to
adopt a separate AWQMAP as a rule that is specific to the
Tillamook Bay Watershed TMDL and zero Load Allocation.
1
For additional background, see Hayes Oyster Co. v. DEQ, 316 Or App 186, 504 P3d 15 (2021), rev den, 369 Or 507 (2022) (Hayes I), and Hayes II. 112 Hayes Oyster Co. v. Dept. of Agriculture
After unsuccessfully petitioning ODA to promulgate a rule to implement the Tillamook Bay Watershed
TMDL, Hayes petitioned the circuit court, under ORS
183.490, for an order compelling ODA to “initiate rulemaking proceedings to implement the zero Load Allocation of
the 2001 Tillamook Bay Watershed TMDL.” The circuit
court dismissed that claim for failure to state a claim, and we reversed and remanded in Hayes II. We determined that
Hayes had stated a claim under ORS 183.490, because the
claim, as alleged, was not based on the insufficiency of ODA’s North Coast AWQMAP and rules but, rather, was based on
the allegation that ODA was required to adopt a plan as a
rule specific to the Tillamook Bay Watershed TMDL and
that ODA had not done so.2 Hayes II, 333 Or App at 146-47.
On remand, the parties filed cross-motions for summary judgment on the merits of Hayes’s ORS 183.490 claim.
The circuit court granted summary judgment for ODA,
stating:
“In conclusion, it appears that while Plaintiff desires
that [ODA] implement the Tillamook Bay TMDL via new
rules limited to Tillamook Bay (rather than the North
Coast) instead of via the existing rules appended to the
TMDL, the CAFO program and the North Coast Basin
plan and rules, no rule or statute compels [ODA] to do so.
In addition, Plaintiffs have not cited the Court to any portion of the TMDL itself that requires such rulemaking as
alleged in the Corrected Amended Petition. The Court finds
that the existing regulatory structure outlined by [ODA] is
within its lawful discretion to fulfill its legal obligation to
implement the terms of the Tillamook Bay TMDL.”
On appeal, Hayes argues that the circuit court
erred because “the requirement [for ODA] to promulgate
an AWQMAP specifically to implement the zero Load
Allocation * * * is in the Tillamook Bay Watershed TMDL
as an order.” (Underline omitted.) That is, Hayes argues
that the source of law requiring ODA to initiate a new
2
We note at the outset that we reject Hayes’s reading of Hayes II offered at oral argument that suggested we had addressed some of the merits of Hayes’s claim in that case. To the contrary, the statements in Hayes II relied on by Hayes were about Hayes’s allegations in the complaint having sufficiently stated a claim under ORS 183.490 and not about the merits of those allegations or the sufficiency of the North Coast Basin AWQMAP and rules. 333 Or App at 146-47. Cite as 353 Or App 110 (2026) 113
rulemaking to implement the Tillamook Bay Watershed
TMDL is the Tillamook Bay Watershed TMDL itself. Hayes
also points to a memorandum of agreement between ODEQ
and the United States Environmental Protection Agency
(EPA). Hayes asserts that ODA has not satisfied its obligation because ODA’s adoption of the North Coast Basin
AWQMAP, the North Coast Basin AWQMAP rules, and the
CAFO permit program are not substantively sufficient to
implement the zero Load Allocation of the Tillamook Bay
Watershed TMDL.
Under ORS 183.490, “[t]he court may, upon petition
as described in ORS 183.484, compel an agency to act where
it has unlawfully refused to act or make a decision or unreasonably delayed taking action or making a decision.” Here,
Hayes’s claim is that the Tillamook Bay Watershed TMDL
required ODA to adopt an AWQMAP as a rule specific to the
Tillamook Bay Watershed, but that ODA has refused to do
so, instead relying on the North Coast Basin AWQMAP, the
North Coast Basin AWQMAP rules, and the CAFO permit
program. See Hayes II, 333 Or App at 146-47 (explaining on
what basis Hayes had stated a claim under ORS 183.490).
The problem with Hayes’s argument on appeal in support
of that claim is that Hayes has not pointed to anything in
the Tillamook Bay Watershed TMDL, or elsewhere, that
requires ODA to promulgate an AWQMAP and rules that are
specific only to the Tillamook Bay Watershed.3 Rather, ODA
has authority to set the boundaries of the land subject to an AWQMAP that it is required to develop due to a TMDL. See
ORS 568.909(1)(a) (“The State Department of Agriculture
may describe the boundaries of agricultural and rural lands
that are subject to a water quality management plan * * *
[d]ue to a determination by the Environmental Quality
Commission to establish a Total Maximum Daily Load for a
body of water under the [Clean Water Act] (33 U.S.C. 1313)
3
Of note, the memorandum of agreement between ODEQ and EPA that Hayes relies on includes a provision that “ODA will convene an advisory committee in developing AWQMAPs to assist in development, and to determine the boundary within which the plan will apply.” (Emphasis added.) That memorandum also contemplates that AWQMAPs may be prepared before a TMDL: “If an AWQMAP is prepared before a TMDL, the AWQMAP will be reevaluated after the TMDL is prepared to ensure that the load allocation for agricultural sources is met.”
114 Hayes Oyster Co. v. Dept. of Agriculture
[.]”); see also ORS 568.909(2) (“For an area whose boundaries have been designated under this section, the department
shall develop and carry out a water quality management
plan for the prevention and control of water pollution from
agricultural activities and soil erosion. The department
shall base the plan and rules adopted to implement the plan
upon scientific information.”).4
We agree with the circuit court that Hayes’s inability to locate a source of law that requires ODA to engage in the specific rulemaking sought by Hayes is fatal to its ORS
183.490 claim. The gravamen of Hayes’s arguments is truly
that the actions that ODA has taken are insufficient to faithfully implement the zero Load Allocation for the Tillamook
Bay Watershed. However, Hayes’s arguments about the substantive deficiency of the North Coast Basin AWQMAP, the
North Coast Basin AWQMAP rules, and the CAFO permit
program to implement the zero Load Allocation are not cognizable under an ORS 183.490 claim. See Salibello v. Board
of Optometry, 276 Or App 363, 368, 367 P3d 932 (2016)
(“Review under ORS 183.490 is available when an agency
has not issued a ‘final’ order and allows the circuit court to compel an agency to act ‘with greater alacrity,’ although not to compel the agency to act in a particular way.”); Mendieta v. Division of State Lands, 148 Or App 586, 594, 941 P2d
582 (1997), rev dismissed, 328 Or 331 (1999) (holding that
ORS 183.490 does not “afford[ ] relief for erroneous agency
action * * * the APA elsewhere expressly provides for review in those circumstances”).
In a second assignment of error, Hayes argues that
the circuit court erred in not applying an adverse inference to ODA’s failure to produce a supporting affidavit from ODEQ. Hayes appears to assert that, because the Oregon
Department of Justice represents both ODA and ODEQ,
4
In its reply brief and at oral argument, Hayes for the first time on appeal argues that ORS 568.909 is the source of law that requires ODA to adopt an AWQMAP that is specific to the Tillamook Bay Watershed TMDL, because the agency under that statute that designates AWQMAP boundaries is ODEQ through establishment of the TMDL. Although we agree that ORS 568.909 requires ODA to adopt an AWQMAP due to a TMDL, and ODA does not assert otherwise, that statute also, by its plain text, states that it is ODA that may describe the boundaries of the land subject to the AWQMAP due to a TMDL. We do not further address Hayes’s late-raised argument.
Cite as 353 Or App 110 (2026) 115
the circuit court should have applied an adverse “missing
witness” inference because ODA did not present an affidavit on what the Tillamook Bay Watershed TMDL requires
from ODEQ’s perspective. See Cler v. Providence Health
System-Oregon, 349 Or 481, 489, 245 P3d 642 (2010) (discussing when a “missing witness” inference, as described
in 2 McCormick on Evidence § 264, 220 (6th ed 2006), may
be argued to the jury). However, the circuit court concluded that there were no genuine issues of disputed material fact
on summary judgment, and, on appeal, Hayes has not identified any genuine issues of disputed material fact in the
record that would preclude the circuit court from granting
summary judgment. Arguing for an adverse evidentiary
inference has relevance only when there are disputes of fact to be resolved. Hayes has not identified any reversible error in its second assignment of error.
Affirmed.